Wednesday, September 18, 2013

Describing the conduct of Justice Department lawyers as “grotesque,” U.S. District Judge Kurt Engelhardt ordered a new trial for officers accused of deadly shootings at the Danziger Bridge after Hurricane Katrina and the subsequent cover-up.
The 129-page order identifies “unprecedented events and acts” of misconduct by prosecutors. Jonathan Turley has a comment on the case here.

Monday, September 16, 2013

In class we discuss some cases on the question of whether an attorney can or should disciplined for expressing offensive opinions or for making racist comments. Among other things, we draw distinctions between expression and conduct and between offensive-but legal conduct and conduct that violates valid regulation on discrimination. The discussion is interesting because eventually the question becomes whether the rules should be different for lawyers simply because they are lawyers. And, as you probably know, the result of some of the cases is that the answer is yes.

Interestingly, the Legal Profession blog is reporting on a new case that adds to the debate. In this case, available here, the Indiana Supreme Court has imposed a 30-day suspension on an attorney for writing a letter to opposing counsel in a divorce action that contained the following statement: "Your client doesn't understand what laws and court orders are. Probably because she's an illegal alien to begin with."
The court rejected the suggestion that the comment was legitimate
advocacy and concluded that it had no purpose other than to embarrass or
burden the opposing party.

I don't think that the conduct in this case, although offensive, would be sufficient to impose sanctions under the Model Rules. Indiana's rule 8.4(g) clearly holds that it constitutes misconduct to "[e]ngag[e] in conduct, in a professional capacity, manifesting bias or prejudice based upon race, gender, religion, national origin, disability, sexual orientation, age, socioeconomic status, or similar factors, and this conduct was not legitimate advocacy." This language is taken from part of the comment of the Model Rule which suggests such conduct can be considered to be a violation of MR 8.4 but only if the conduct is prejudicial to the administration of justice.

Should sexist comments be a disciplinary offense? Should they be tolerated either as a “First Amendment right”? For a discussion on the subject, see Roberta M. Ikemi and Carol A. Sobel, Should Sexist Comments be a Disciplinary Offense?, 81 A.B.A. J. 40 (August, 1995). Ikemi argues that “[i]f we truly believe in equal access to justice, the courts should have the power to discipline lawyers for gender-biased or racist conduct” because “[w]hen directed at other lawyers, this behavior is evidence of an unwarranted opinion about who is deemed to be a worthy opponent. Left unchecked, the conduct has the effect of intimidation and denies the value of the attorney’s contribution to the legal system. In short, gender-biased and racist conduct denies the principle of equal access to the justice system and its courts, and keeps it from becoming a reality by silencing those who would implement it.”

In contrast, Sobel suggests that “the fact of a problem with gender bias by attorneys in the judicial system does not excuse any action to discipline attorneys for “objectionable” speech.” She argues that the “utterance of biased expression should not be enough to invoke the sanctions of the legal system because one important part of our commitment to expressive rights is that no person’s speech will be punished simply because it is found to be “offensive” to another person or portion of the community.”

Friday, September 13, 2013

Last year I posted a few links to articles on the debate on whether
undocumented immigrant should be allowed to practice law (in
California). The California Supreme Court recently heard oral arguments, and I posted a link to the video of the oral argument and more articles here.

Now the JDJournal is reporting that the California
Supreme Court rejected the candidate's argument holding that the federal laws that prohibited professional licenses to illegal
immigrants also allowed state legislatures to carve out exemptions. (I have not yet seen the opinion on this.)

But the story does not end there. In a somewhat surprising move, the California Legislature has approved a bill to allow law licenses to illegal
immigrants. Go to JDJ for more information. (Thanks to the Legal Ethics Forum for the link.)

Just a few minutes ago I posted a note about a recent case from the Fourth Circuit on prosecutorial misconduct. Here is another comment on the same case. The case is U.S. v. Bartko. As this comment states, the court's opinion was notable not only for its lengthy reprimand of the practices of the U.S. Attorney for the Eastern District of North Carolina, but more so for its complete failure to do anything about it.

I hate to sound like a broken record, but here I go again: prosecutors will continue to break the rules unless courts begin to take the problem seriously. Here is the latest example of the problem. As recently posted in Seeking Justice "until there are serious consequences, including reversal of convictions, disbarment, and sanctions against the prosecutors, we will all continue to suffer from blatant disregard of the law with impunity by the very people who are sworn and empowered to protect us."

A couple of days ago I posted a note on a recent complaint filed alleging an attorney disclosed confidential information when replying to a negative on line review. Today, the Legal Ethics Forum picked up the story and added a couple of interesting questions: whether the "self-defense" exception in Rule 1.6(b)(5) would ever authorize a lawyer to respond to a negative on-line review of the lawyer's services and whether a
lawyer who wants to exercise control over his or her on-line reputation
could have as part of the retainer agreement a provision where the
client agrees not to post any reviews of the lawyer's services (if the client did post something, the attorney could then have a breach of contract action). Take a look at the comments section of the Forum where you will find links to relevant materials on these issues.

My own opinion on the first question is that there is nothing that prevents a lawyer from replying to a review but the lawyer has to be careful not to disclose more information than necessary. For other comments on this issue, go here. In most cases, the attorney can defend his or her reputation without the need to disclose information that is not public already. The problem in the Illinois case was not that the attorney replied to the review, but that he disclosed more information than was necessary.

The Legal Profession Blog is reporting that the Illinois Administrator has filed a complaint alleging that an attorney violated her duty of
confidentiality by responding to a client's unfavorable review of her
services. There is nothing inherently wrong in replying to an online review, but just like anywhere else, you have to be careful about what you say. The attorney in this case allegedly disclosed more information that was necessary (in fact, more information that was relevant) and thus is now facing the complaint for disclosing confidential information.

Wednesday, September 4, 2013

Last year I posted a few links to articles on the debate on whether undocumented immigrant should be allowed to practice law (in California). See here, here, here and here. The case was finally heard by the Supreme Court of California and here is a link to the oral argument. Also, take a look at the comments on the argument (and some predictions) at the Legal Ethics Forum. There are more links there too.

I must confess I did not know that in some jurisdictions the Public Defender is an elected position. Wow! I find that hard to believe. The dangers to the system of justice in that idea seem apparent to me and now seem to be quite clear in Florida. I just found out by reading a comment in A Public Defender (blog) on the situation in Florida. You should take a look at it here.

I have more than once complained about the lack of common sense when it comes to rules related to advertising lawyers' "specialties." (See here, for example.) Adding to this issue, the New York State Bar Association recently issued an ethics opinion on lawyer use LinkedIn’s “specialty” feature. See Ethics Opinion (EO) 972.

The opinion concludes that listing practice areas under LinkedIn's “Specialties” section would constitute a claim that a lawyer or firm is a specialist in a particular field of law and thus, absent certification would violate New York Rule of Professional Conduct 7.4(a). One problem with the opinion, however, is that as of March 2012, LinkedIn deleted the specialties option.

But the opinion raises a number of other issues that merit discussing. First, again, I think it is nonsense to argue that it is improper for an attorney to advertise he or she specializes in a certain area of the law. See my previous posts on this for more on that.

Second, it is worth asking whether states are fighting a losing battle when attempting to regulate the use of social media which changes so quickly. And, if so, it is worth asking what is the better approach.

Carolyn Elefant has a short comment on this subject in her blog MyShingle.com here.
Her position is simple: Lawyers’ ethical obligations when using social media may be summarized with a simple mandate: "No deception." Yet, she argues, "rather than invoke the simple litmus test of whether a communication is deceptive to a reasonable viewer to evaluate lawyer advertising, disciplinary committees feel compelled to spill thousands of words analyzing the ethics of each and every feature of each and every iteration of each and every social media platform."

And her conclusion: "I’m not suggesting that the bars relax regulation of lawyers using
social media. But when it comes to the ethics of social media, one
small graphic combined with a little bit of common sense is worth not
just 1000 words but thousands of dollars in savings as well."

Just a few days ago, the Missouri Supreme Court issued an opinion that raises an interesting question. Here is the story, in a nutshell: suppose attorney A hires attorney B to help him file a series of claims. Now assume that the claims are frivolous. Clearly Attorney B would be subject to discipline and sanctions under both rules of professional conduct and rules of procedure - assuming Attorney B knew the claims were frivolous. But how about Attorney A. He was not practicing law; he was a client.

The court found the lawyer should be disciplined and, in fact, imposed a pretty severe sanction for the conduct. The case is called In re Lawrence J Hess and it is available here. (Thanks to the Legal Profession blog for the link.). One judge wrote a concurring opinion arguing that the rule on frivolous litigation should only apply to the lawyer who acted as a lawyer not to the one acting as a client. One judge wrote a dissenting opinion finding the conduct did not violate the rules at all.

The concurring opinion makes an interesting point. She argues that the conduct violated rule 8.4 (conduct prejudicial to the administration of justice), but that the rule related to filing frivolous claims should apply only to the lawyer acting as an advocate. It is this lawyer who has the duty to exercise independent professional judgment to decide whether the claim is frivolous and who has the duty to tell the client it should not be filed.

This is a close call for me. I understand the logic of the argument in the concurring opinion, but it is not inconsistent with other rules to say that they apply to lawyers even when they are not in the practice of law. In the end, given that the sanction would not change regardless of whether it is determined that the attorney violated one or two rules, the issue may just be academic.